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Document Details

Effective November 6, 2000, except for Sec. 90.176, which contains information collection requirements that have not been approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the effective date.

Effective Date:

11/06/2000

Document Type:

Rule

Document Citation:

65 FR 53641

Page:

53641-53646
(6 pages)

CFR:

47 CFR 90

Agency/Docket Numbers:

FCC 00-264

WT Docket No. 96-86

Document Number:

00-22469

Document Details

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Start Preamble

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

The Second Memorandum Opinion and Order, (Second MO&O), addresses petitions for reconsideration that were filed in response to the First Report and Order, (First R&O) in this proceeding. The Commission resolves those portions of the petitions that address our decisions on certain technical requirements, the digital modulation requirement, protection criteria between television and land mobile operations, eligibility for licensing and alliances under our Rules, and administrative issues regarding regional planning, national planning and frequency coordination.

DATES:

Effective November 6, 2000, except for § 90.176, which contains information collection requirements that have not been approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT:

Pam Slipakoff or Peter J. Daronco of the Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, (202) 418-0680. For further information concerning the information collection contained in the Second MO&O, contact Judy Boley at (202) 418-0215 or via the Internet to jboley@fcc.gov.

End Further InfoEnd PreambleStart Supplemental Information

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Second MO&O in WT Docket No. 96-86, FCC 00-264, adopted July 21, 2000, and released August 1, 2000. The full text of the (Second MO&O) is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The full text of the Second MO&O may also be purchased from the Commission's copy contractor, International Transcription Services, 1231 20th Street, NW., Washington, DC 20036, telephone (202) 857-3800, facsimile (202) 857-3805. The full text of the Second MO&O may also be downloaded at: <http://www.fcc.gov/​Bureaus/​Wireless/​Orders/​2000/​fcc00264.doc>. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by contacting Martha Contee at (202) 418-0260, TTY (202) 418-2555, or at mcontee@fcc.gov.

Synopsis of the Second Memorandum Opinion and Order

1. The First Report and Order, (First R&O), 63 FR 58645 November 2, 1998, in this proceeding established a band plan and set forth service rules for 24 MHz of spectrum (the 700 MHz band) that was recently designated for public safety use in light of the transition to digital television. In response, seventeen parties filed petitions for reconsideration and/or clarification of those decisions. On February 25, 2000, the Public Safety National Coordination Committee (NCC) submitted recommendations to the Commission for technical and operational standards on the new 700 MHz band. The Second MO&O addresses those petitions for reconsideration that were filed in response to the First R&O. It does not, however, establish a digital modulation standard, because the Commission is currently seeking public comment on the issue in a Fourth Notice of Proposed Rule Making in this proceeding. The Start Printed Page 53642Second MO&O does, in turn, establish that some form of digital modulation is mandatory for the 700 MHz band, while interim analog modulation is not permissible.) The Second MO&O also defers resolution of the various portions of the reconsideration requests that address the band plan for the 700 MHz band, and low power narrowband devices for on-scene communications.

2. The Second MO&O reaffirms most of the decisions on technical standards that were established by the First R&O. The Commission declines to modify its Rules regarding transmitter power and antenna height limitations, noting that the Commission's existing waiver process is an efficient and effective mechanism to address those situations when individual technical requirements may warrant an exemption from the Rules. The Commission grants certain petitions for reconsideration regarding automatic power control, however, by making it an optional requirement for mobile and portable transmitters. With regard to emission limitations, the Commission defers establishing any particular value, while charging the industry to provide consensus recommendations within a one-year time frame. However, in response to various petitions for reconsideration, the Commission modifies its frequency stability requirement for narrowband mobile and portable units by adopting flexible standards that account for varying operating channel bandwidths: 1.0 ppm for 6.25 kHz, 1.5 ppm for 12.5 kHz (2 channel aggregate), and 2.5 ppm for 25 kHz (4 channel aggregate). The Commission retains its nationwide wideband channel efficiency standard as adopted in its First R&O, while noting that it may revisit the issue pursuant to further NCC recommendations. Similarly, the Commission refuses to establish any receiver standards until such time as the NCC issues recommendations on the matter.

3. In addition to these technical standards, the Second MO&O also resolves certain petitions regarding interference between broadcast television and land mobile operations. The Commission retains its current protection criteria, while noting that public safety applicants can submit an engineering study to justify separations that differ from those specified in the Commission's Rules.

4. The Second MO&O resolves several concerns regarding the eligibility to hold a license in the 700 MHz band. The Commission clarifies that every non-governmental organization (NGO) must be authorized by a state or local governmental entity engaged in public safety. In addition, NGOs must submit a written statement of continuing authorization by their governmental sponsor at renewal time. The Second MO&O also clarifies that § 2.103(b) of our Rules, provides a new sharing option for the 700 MHz band under which the Commission authorizes its state or local governmental licensee to allow a Federal public safety entity to use the licensed channels pursuant to the terms of a written “Section 2.103(b) agreement” between the licensee and the Federal entity. In that regard, the Second MO&O clarifies related concerns of requiring NTIA approval, respecting contractual terms, implementing coordinated use, and limiting applicability to the general use spectrum.

5. There are several administration issues that the Second MO&O addresses, in the areas of regional planning, national planning, frequency coordination and common data bases. The Commission retains its regional planning approach, while clarifying that regional planning committees (RPCs) are authorized to provide the “highest and best” uses of the 700 MHz band general use spectrum (limited by a requirement that they ensure representation of all public safety entities in their regions). The Commission also declines to establish RPC funding through frequency coordinators, and declines to require all RPCs to conform to state boundaries, given that entities may opt out of a designated regional planning process. With regard to national planning, the Second MO&O clarifies certain issues regarding the NCC's participation in resolving inter-regional disputes on the general use channels, the NCC's relationship to RPCs, and the composition and responsibilities of the NCC's membership. Finally, with regard to frequency coordination and common data bases, the Commission affirms its decisions in the First R&O, refusing to establish either a common data base of regional plans, or a common coordinator data base. The Commission does, however, encourage RPCs and coordinators to voluntarily create databases that are responsive to their ongoing requirements.

Regulatory Flexibility Act Final Analysis

6. As required by the Regulatory Flexibility Act (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in Appendix A of the Second Notice of Proposed Rulemaking issued in this proceeding. No comments were filed in direct response to the IRFA. Subsequently, a Final Regulatory Flexibility Analysis (“FRFA”) was incorporated in Appendix A of the First R&O issued in this proceeding. Lastly, a Supplemental Final Regulatory Flexibility Analysis (“First SFRFA”) was incorporated in Appendix A of the Memorandum Opinion and Order on Reconsideration (“First MO&O”), 64 FR 60123, November 4, 1999, issued in this proceeding. The Second Supplemental Final Regulatory Flexibility Analysis (“Second SFRFA”) in this Second Memorandum Opinion and Order (“Second MO&O”) contains information additional to that contained in the First FRFA and is limited to matters raised on reconsideration or clarification with regard to the First Report and Order (First R&O) and addressed in this Second MO&O. This Second SFRFA conforms to the RFA.

I. Need for, and Objectives of, the Second MO&O

7. In this Second MO&O, we address the multiple Petitions for Reconsideration and/or Clarification filed in connection with the First Report and Order in this docket that established a band plan and adopted service rules in the newly-reallocated public safety spectrum at 764-776 MHz and 794-806 MHz (“the 700 MHz band”). This Second MO&O resolves those portions of the petitions that address our decisions in the First R&O on:

II. Summary of Significant Issues Raised by the Public Comments in Response to the IRFA

8. No comments were filed in direct response to either of the IRFAs, or either of the final analyses. However, as described in Section V, we have taken into account all comments submitted generally by small entities. Start Printed Page 53643

III. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply

9. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (“SBA”). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities.

10. Public Safety Radio Pool Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Spectrum in the 700 MHz band for public safety services is governed by 47 U.S.C. 337. Non-Federal governmental entities as well as private businesses are licensees for these services. All governmental entities with populations of less than 50,000 fall within the definition of a small entity. The rule changes adopted in this Second MO&O could affect public safety entities who wished to utilize frequencies in the low power pool for uses such as on-scene firefighting communications and various other short-range communications systems which would be developed for 700 MHz band equipment.

11. Radio and Television Equipment Manufacturers. According to SBA regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment. We anticipate that no more than six radio equipment manufacturers will be affected by our decisions in this proceeding. Of these six firms, no more than four have fewer than 750 employees and would therefore be classified as small entities.

12. Television Stations. This proceeding will affect full service TV station licensees (Channels 60-69), TV translator facilities, and low power TV (LPTV) stations. The SBA defines a TV broadcasting station that has no more than $10.5 million in annual receipts as a small business. TV broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by TV to the public, except cable and other pay TV services. Included in this industry are commercial, religious, educational, and other TV stations. Also included are establishments primarily engaged in TV broadcasting and which produce taped TV program materials. Separate establishments primarily engaged in producing taped TV program materials are classified under another SIC number.

13. There were 1,509 TV stations operating in the Nation in 1992. That number has remained fairly constant as indicated by the approximately 1,551 operating TV broadcasting stations in the Nation as of February 28, 1997. For 1992 the number of TV stations that produced less than $10.0 million in revenue was 1,155 establishments, or approximately 77 percent of the 1,509 establishments. There are currently 95 full service analog TV stations, either operating or with approved construction permits on channels 60-69. In the DTV Proceeding, we adopted a DTV Table which provides only 15 allotments for DTV stations on channels 60-69 in the continental United States. There are seven DTV allotments in channels 60-69 outside the continental United States. Thus, the rules will affect approximately 117 TV stations; approximately 90 of those stations may be considered small businesses. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-TV affiliated companies. We recognize that the rules may also impact minority-owned and women-owned stations, some of which may be small entities. In 1995, minorities owned and controlled 37 (3.0 percent) of 1,221 commercial TV stations in the United States. According to the U.S. Bureau of the Census, in 1987 women owned and controlled 27 (1.9 percent) of 1,342 commercial and non-commercial TV stations in the United States.

14. There are currently 4,977 TV translator stations and 1,952 LPTV stations. Approximately 1,309 low power TV and TV translator stations are on channels 60-69 which could be affected by policies in this proceeding. The Commission does not collect financial information of any broadcast facility and the Department of Commerce does not collect financial information on these broadcast facilities. We will assume for present purposes, however, that most of these broadcast facilities, including LPTV stations, could be classified as small businesses. As indicated earlier, approximately 77 percent of TV stations are designated under this analysis as potentially small businesses. Given this, LPTV and TV translator stations would not likely have revenues that exceed the SBA maximum to be designated as small businesses.

IV. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

15. This Second MO&O adopts rules that will entail reporting, recordkeeping, and/or third-party consultation. However, the Commission believes that these requirements are the minimum needed. The Second MO&O extends the scope of non-governmental organization (“NGO”) certification so that all applications submitted by NGOs must be accompanied by a new, written certification of support (for the NGO applicant to operate the applied-for system) by their supporting state or local governmental entity. This change will ensure compliance with the statutory criteria for NGO eligibility to hold a license for 700 MHz band public safety spectrum.

V. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered.

16. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the Start Printed Page 53644clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (iii) the use of performance, rather than design, standards; and (iv) an exemption from coverage of the rule, or any part thereof, for small entities.

17. Automatic Power Control. In the First Report and Order, we required mobile and portable transmitters to be designed to employ automatic power control (“APC”). However, we subsequently realized that APC is incompatible with most public safety dispatch systems. Therefore, we are eliminating our requirement for APC, and are making it optional. To the extent that upgrading equipment for APC may have otherwise imposed a burden, this change benefits small entities and their ability to interact with public safety dispatch systems.

18. Non-Governmental Organizations. As noted in Section IV, above, we are adding a requirement for NGOs to recertify their continuing authorization through their supporting governmental entity, for both renewal and modification of NGO licenses. This helps to ensure compliance with the statutory public safety responsibilities for NGOs. Although this recertification will impose an additional burden on small entities, we note that license renewal only occurs once every ten years. Furthermore, we note that NGOs are required, by our Rules, to keep their supporting governmental entity apprised of changes at all times. Therefore, after weighing the additional requirement of recertification against the benefit of ensuring compliance, we decided to add this requirement. We did not, however, complicate the authorization with any additional certification requirements. We are allowing NGO applicants to submit existing written authorizations from their supporting governmental entities, rather than requiring the NGOs to prepare additional documentation.

19. By adding this basic requirement, we also benefit other small entities: the small local governments who may lack sufficient administrative reporting and recordkeeping resources to monitor their NGOs. These small governmental entities may find it easier to keep track of small NGOs as a result of this new recertification procedure.

Report to Congress

20. The Commission will send a copy of this Second MO&O, including this Second Supplemental Final Regulatory Flexibility Analysis, in a report to be sent to Congress pursuant to SBREFA, 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Second MO&O, including this Second Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Second MO&O and the Second Supplemental Final Regulatory Flexibility Analysis (or summaries thereof) will also be published in the Federal Register.See 5 U.S.C. 604(b).

VI. Paperwork Reduction Analysis

21. This Second MO&O contains either a new or modified information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection contained in this Second MO&O, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this Second MO&O; OMB notification of action is due 60 days from date of publication of this Second MO&O in the Federal Register.

Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. These comments should be submitted to Judy Boley, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554, or via the Internet to <jboley@fcc.gov>. Furthermore, a copy of any such comments should be submitted to Edward C. Springer, OMB Desk Officer, 725 17th Street, NW, Room 10236 NEOB, Washington, DC 20503, or via the Internet to <edward_c._springer@omb.eop.gov>.

Needs and Uses: The revision to the reporting requirement in 90.176 is a result of decisions in the Second MO&O in PR Dkt. No. 96-86 that adds the frequency bands 764-776/794-806 MHz. The rule requires each Private Land Mobile frequency coordinator provide, within one business day, a listing of their frequency recommendations to all other frequency coordinators in their respective pool, and, if requested, an engineering analyses. This requirement is necessary to avoid situations where harmful interference is created because two or more coordinators recommend the same frequency in the same area at approximately the same time to different applicants.

VII. Ordering Clauses

22. Pursuant to sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 405, and § 1.429(i) of the Commission's Rules, that the petitions for reconsideration and/or clarification filed by the American Association of State Highway and Transportation Officials, Forestry Conservation Communications Association, International Association of Fire Chiefs, Inc., International Association of Fish and Wildlife Agencies, International Municipal Signal Association, and National Association of State Foresters (joint filing), Association of Public-Safety Communications Officials-International, Inc., Dataradio Group of Companies, Ericsson, Inc., Federal Law Enforcement Wireless Users Group, King Communications U.S.A. Inc., Motorola, Inc., National Public Safety Telecommunications Council, New York State Technology Enterprise Corporation, Commonwealth of Pennsylvania, John Powell, Project 25 Steering Committee, Safety Tech Industries, State of California, and State of Florida between November 12, 1998 and December 2, 1998, respectively, are granted or deferred to the extent indicated herein and otherwise are denied. Pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and §§ 1.49 and 1.429 of the Commission's Rules, that Motorola's Motion for Leave to Extend Page Limit is granted and Maxon America, Inc. Reply Comment is denied to the extent indicated herein.

23. Pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), the Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this Second Memorandum Opinion and Order, Start Printed Page 53645 including the Second Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

(e) For frequencies between 470 and 512 MHz, 764-776/794-806 MHz, 806-824/851-869 MHz, and 896-901/935-940 MHz: A recommendation of the specific frequencies that are available for assignment in accordance with the loading standards and mileage separations applicable to the specific radio service, frequency pool, or category of user involved is required from an applicable frequency coordinator.

* * * * *

(i) * * *

(10) Applications for mobile stations operating in the 470-512 MHz band, 764-776/794-806 MHz band, or above 800 MHz if the frequency pair is assigned to a single system on an exclusive basis in the proposed area of operation.

(11) Applications for add-on base stations in multiple licensed systems operating in the 470-512 MHz, 764-776/794-806 MHz band, or above 800 MHz if the frequency pair is assigned to a single system on an exclusive basis.

(a) Frequencies below 470 MHz. Within one business day of making a frequency recommendation, each frequency coordinator must notify and provide the information indicated in paragraph (f) of this section to all other frequency coordinators who are also certified to coordinate that frequency.

(1) The applicable frequency coordinator for each frequency is specified in the coordinator column of the frequency tables of §§ 90.20(c)(3) and 90.35(b)(3).

(2) For frequencies that do not specify any frequency coordinator, all certified in-pool coordinators must be notified.

(3) For frequencies that are shared between the Public Safety Pool and the Industrial/Business Pool (frequencies subject to §§ 90.20(d)(7), (d)(25), (d)(34), or (d)(46) in the Public Safety Pool, and subject to §§ 90.35(c)(13), (c)(25), or (d)(4) in the Industrial/Business Pool), all certified coordinators of both pools must be notified.

(b) Frequencies in the 470-512 MHz band. Within one business day of making a frequency recommendation, each frequency coordinator must notify and provide the information indicated in paragraph (f) of this section to all other certified frequency coordinators in the Public Safety Pool and the Industrial/Business Pool.

(c) Frequencies in the 764-776/794-806 MHz band. Within one business day of making a frequency recommendation, each frequency coordinator must notify and provide the information indicated in paragraph (f) of this section to all other certified frequency coordinators in the Public Safety Pool.

(d) Each frequency coordinator must also notify all other certified in-pool coordinators on any day that the frequency coordinator does not make any frequency recommendations.

(e) Notification must be made to all coordinators at approximately the same time and can be made using any method that ensures compliance with the one business day requirement.

(f) At a minimum the following information must be included in each notification:

(1) Name of applicant;

(2) Frequency or frequencies recommended;

(3) Antenna locations and heights;

(4) Effective radiated power (ERP);

(5) Type(s) of emissions;

(6) Description of the service area; and

(7) Date and time of recommendation.

(g) Upon request, each coordinator must provide any additional information requested from another certified coordinator regarding a pending recommendation that it has processed but has not yet been granted by the Commission.

(h) It is the responsibility of each coordinator to insure that its frequency recommendations do not conflict with the frequency recommendations of any other frequency coordinator. Should a conflict arise, the affected coordinators are jointly responsible for taking action to resolve the conflict, up to and including notifying the Commission that an application may have to be returned.

Start Amendment Part

4. Section 90.523 is amended by revising paragraph (b) to read as follows:

(b) Nongovernmental organizations. A nongovernmental organization (NGO) that provides services, the sole or principal purpose of which is to protect the safety of life, health, or property, is eligible to hold an authorization for a system operating in the 764-776 MHz and 794-806 MHz frequency bands for transmission or reception of communications essential to providing such services if (and only for so long as) the NGO applicant/licensee:

(1) Has the ongoing support (to operate such system) of a state or local governmental entity whose mission is the oversight of or provision of services, the sole or principal purpose of which is to protect the safety of life, health, or property;

(2) Operates such authorized system solely for transmission of communication essential to providing services the sole or principal purpose of which is to protect the safety of life, health, or property; and

(3) All applications submitted by NGOs must be accompanied by a new, written certification of support (for the NGO applicant to operate the applied-for system) by the state or local governmental entity referenced in paragraph (b)(1) of this section.

* * * * *

Start Amendment Part

5. Section 90.535 is amended by revising paragraphs (b) and (c) to read as follows:

(c) The frequency stability of mobile, portable, and control transmitters operating in the narrowband segment must be 400 parts per billion or better when AFC is locked to the base station. When AFC is not locked to the base station, the frequency stability must be at least 1.0 ppm for 6.25 kHz, 1.5 ppm for 12.5 kHz (2 channel aggregate), and 2.5 ppm for 25 kHz (4 channel aggregate).

(ii) Control and mobile stations (including portables) are limited in height and power and therefore shall afford protection to co-channel and adjacent channel TV/DTV stations in accordance with the values specified in Table D (co-channel frequencies based on 40 dB protection) in § 90.309 of this part and a minimum distance of 8 kilometers (5 miles) from all adjacent channel TV/DTV station hypothetical or equivalent Grade B contours (adjacent channel frequencies based on 0 dB protection for TV stations and—23 dB for DTV stations). Since control and mobile stations may affect different TV/DTV stations than the associated base station, particular care must be taken by applicants to ensure that all the appropriate TV/DTV stations are considered (e.g., a base station may be operating on TV Channel 64 and the mobiles on TV Channel 69, in which case TV Channels 63, 64, 65, 68, and 69 must be protected). Since mobiles and portables are able to move and communicate with each other, licensees or coordinators must determine the areas where the mobiles can and cannot roam in order to protect the TV/DTV stations, and advise the mobile operators of these areas and their restrictions.